U.S. v. Freeman

• Decision Date: 21 April 1987
• Docket Number: No. 86-1892,86-1892
• Citation: 816 F.2d 558
• Parties: 22 Fed. R. Evid. Serv. 1772 UNITED STATES of America, Plaintiff-Appellee, v. James David FREEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 558

816 F.2d 558

22 Fed. R. Evid. Serv. 1772

UNITED STATES of America, Plaintiff-Appellee, v. James David FREEMAN, Defendant-Appellant.

No. 86-1892.

United States Court of Appeals, Tenth Circuit.

April 21, 1987.

Julie Robinson Trice, Asst. U.S. Atty., Kansas City, Kan., (Benjamin L. Burgess, Jr., U.S. Atty., on the brief), for plaintiff-appellee.

Paul M. Dent, Kansas City, Kan., for defendant-appellant.

Before BARRETT, McWILLIAMS and BALDOCK, Circuit Judges.

BARRETT, Circuit Judge.

James David Freeman (Freeman) appeals from a jury verdict of guilty of delivery and possession of counterfeit federal reserve notes, in violation of 18 U.S.C. Secs. 472 and 473. The relevant facts are undisputed.

During December 27-28, 1985, Freeman and his co-defendants, Joyce Martin and Jolynn Grady, were under surveillance for suspected distribution of counterfeit federal reserve notes. The surveillance was undertaken based on information received from a confidential informant. Freeman was arrested on December 28, 1985, in Topeka, Kansas. Martin and Grady were arrested that same day in Lawrence, Kansas.

Following his arrest, Freeman was transported to Kansas City, Missouri, by several United States Secret Service agents, where, after being fully advised of his Miranda rights, he was interviewed. During the interview Freeman related to the agents that he had purchased $50,000 in counterfeit money for $12,500, and that he, Martin and Grady had passed counterfeit bills in Illinois, Iowa, and Nebraska on the weekend of December 19, 1985. Freeman also stated that he had given Grady twenty-five counterfeit $100 federal reserve notes early on December 28th in Lawrence, Kansas.

During the interview, Freeman also signed a consent form to permit agents to search his automobile. The search of Freeman's car produced $48,500 in counterfeit $100 federal reserve notes. Thereafter, Freeman was released and allowed to return to his home in Minnesota.

On January 22, 1986, an indictment was returned charging Freeman, Martin and Grady with possession and distribution of counterfeit $100 federal reserve notes. Prior to trial, ¹ Freeman filed several motions including a motion to require the government to identify its confidential informant. Freeman also filed a motion to suppress the statements he had made to the Secret Service agents at the time of his interview and to suppress the fruits of the search of his car. Following a hearing, the district court denied Freeman's motions.

At trial, Special Agent McNerman of the Secret Service, the case agent on the investigation leading to Freeman's arrest, testified, inter alia, that: he had been told by a Kansas City police officer that a reliable source had information regarding Martin and Grady passing counterfeit money; he met with the informant who related that Martin and Grady had been passing counterfeit bills in other states; officers in other states verified that counterfeit $100 bills had been passed in their states on the weekend related by the informant. Agent McNerman also testified that the informant related that Martin and Grady planned to meet with an unknown white male from another state on the weekend of December 27, 1985, for the purpose of passing counterfeit money. A surveillance of Martin and Grady established their meeting with Freeman. They were subsequently arrested for possession and distribution of counterfeit federal reserve notes.

The government also presented evidence relating to Freeman's arrest, an interview during which Freeman acknowledged purchasing $50,000 of counterfeit bills for $12,500, and the search of his automobile which produced $48,500 in counterfeit $100 bills. Freeman did not present any evidence. After deliberating for approximately one hour, the jury returned its verdict of guilty.

Following the trial, Freeman filed a motion for a new trial contending: (1) the verdict was contrary to the law and weight of evidence presented at trial; (2) the court erred in denying his motion to suppress his statements to the Secret Service agents and the fruits of the search of his automobile, inasmuch as they were the direct results of an unlawful arrest; and (3) the court erred in permitting hearsay concerning statements of a confidential informant. The court denied Freeman's motions.

On appeal, Freeman contends that the court erred in: (1) overruling his motion to suppress his statements and the fruits of the search of his automobile; (2) overruling his motion to compel the government to identify its confidential informant; (3) admitting in evidence hearsay testimony concerning statements of the confidential informant; and (4) overruling his motion for a continuance on the day of trial so that he could retain an attorney other than appointed counsel.

I.

Freeman contends that the court erred in overruling his motion to suppress his statements to the Secret Service agents and the fruits of the search of his vehicle because there was no probable cause for his warrantless arrest, and the statements and consent to search made by him following his arrest were not voluntary.

In reviewing the denial of a motion to suppress, the trial court's findings of fact must be accepted unless clearly erroneous. United States v. Ellison, 791 F.2d 821 (10th Cir.1986); United States v. Espinosa, 771 F.2d 1382 (10th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985). Further, we must consider the evidence presented at trial in a light most favorable to the government. United States v. Alonso, 790 F.2d 1489 (10th Cir.1986).

The district court denied Freeman's motion to suppress prior to trial and the court also denied Freeman's motion for a new trial in which he alleged that the court had erroneously denied his pretrial motion to suppress. In denying Freeman's motion for a new trial, the court found:

The defendant also contends that the court erred in denying the defendant's pre-trial motion to suppress the defendant's statements to secret service agents and the fruits of the search of the defendant's vehicle. The defendant contends that they were direct results of an unlawful arrest which was not supported by probable cause. The court finds that the confidential informant and the facts surrounding the informant's testimony, as well as the actions of the defendant, did establish probable cause sufficient for the lawful arrest of the defendant. The court further finds that defendant's statements to Government officials were freely, knowingly and voluntarily given after the defendant had been fully advised of his rights. The court therefore finds that such statements are not fruits of an invalid, unlawful arrest. The court further finds that the defendant voluntarily consented to the search of his vehicle. Probable cause for the defendant's arrest and search of the car was clearly established by the informant's information and the two-day surveillance of the defendant and his two accomplices.

Finally, the defendant claims that the court erred in permitting hearsay testimony concerning statements of a confidential informant. The court must agree with the Government that the confidential informant was a tipster, not a participant nor a spectator to the crimes, that the informant's identity needn't be disclosed, and that the informant's statements were admissible.

R., Vol. I, Tab 65, pp. 2-3.

Considering the evidence presented at trial in a light most favorable to the government, we hold that the trial court's findings of fact relative to Freeman's motion to suppress as set forth in his motion for a new trial are not clearly erroneous. We hold that the court properly found that there was probable cause for Freeman's warrantless arrest and that his statements and consent to the search of his automobile were voluntarily given.

Probable cause to arrest is measured against an objective standard. United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir.1984). Probable cause for arrest exists where the facts and circumstances within the arresting officers' knowledge and about which they have reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed by the person to be arrested. United States v. Alonso, supra, at pp. 1495-96.

At the time of Freeman's arrest, the arresting officers had been notified by a reliable informant that Martin and Grady planned to meet an "unknown white male" (Freeman) from out of town for the purpose of distributing counterfeit bills and that the counterfeit money was to be passed by Martin and Grady who would then meet the male later in a different town. Martin and Grady had been surveilled meeting with Freeman when he was driving a car with Minnesota plates registered in his name and the three had been surveilled driving to Lawrence, Kansas, in two separate cars. In Lawrence, the three had been surveilled as they met in a parking lot, after which Grady had been observed entering and exiting Freeman's car, and thereafter proceeding to the Lawrence business district where she was arrested for passing counterfeit bills. The information provided by the informant, all of which was corroborated by other law enforcement officers and the actions of Martin, Grady, and Freeman, provided adequate probable cause to arrest Freeman.

There is nothing in the record indicating that Freeman's consent to the search of his vehicle and statements to the arresting officers were anything other than voluntary. The issue of whether a defendant has voluntarily consented to a search is a question of fact to be determined from the totality of the circumstances. United States v. Obregon, 748 F.2d 1371 (10th Cir.1984). Upon review, we must view the evidence in the light most favorable to the district court's determination. Id. When, as here, the record is void of any evidence of coercion, we cannot set aside a district court's finding of...